R v H - [2021] NSWDC 107

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v H [2021] NSWDC 107
Hearing dates: 30 November 2020, 1 - 3 December 2020,
5 March 2021
Date of orders: 19 March 2021
Decision date: 19 March 2021
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [43] onwards

Catchwords:
CRIMINAL LAW –– Child sex offence – Aggravated sexual assault pursuant to s 61J(2)(d) of the Crimes Act
SENTENCE –– Aggravating factors – Victim’s age significantly below threshold of under 16 years provided for in s 61J(2)(d) of the Crimes Act – Victim was under the Offender’s authority – Offending committed in the Victim’s home – Mitigating factors – Offender’s actions not planned – Offender was of prior good character – No prior convictions – Objective seriousness found to fall towards the lower end of objective seriousness – Where the standard non-parole period has been departed from
SENTENCE –– Offender resided in seemingly transient accommodation – Offender has been subjected to sexual abuse – Offender experienced learning difficulties from an early age – Where the principles in Bugmy v The Queen are invoked – Offender found to be Medium-High risk of re-offending

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J
Crimes (Sentencing Procedure) Act 1999 (NSW), 21A, 3A

Cases Cited:
R v PGM [2008] NSWCCA 172
Bugmy v The Queen [2013] 249 CLR 571
Ellis v R [2020] NSWCCA 303
Muldrock v The Queen (2011) 244 CLR 120

Category: Sentence
Parties: Regina (the Crown)
H (the Offender)
Representation:
Counsel:
Mr J. Stanhope (the Crown)
Mr P. Williams (the Offender)
Solicitors:
Director of Public Prosecutions (the Crown)
Legal Aid NSW (the Offender)

File Number(s): 2019/131628
Publication restriction: Section 578A(2) of the Crimes Act 1900 (NSW) and
Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. H is a pseudonym for the Offender.

Judgment

Following a four day trial, the Defendant was found guilty on 4 December 2020 of one offence that he “on or about 1 August of 2016, at Taree in the State of New South Wales, did have sexual intercourse with [the Victim] without her consent, and knowing that she was not consenting to the sexual intercourse, [the Victim] then being under the age of 16 years, namely 11 years”. Following the jury verdict, the Defence applied for the matter to be adjourned in order to obtain information relevant to sentencing. The matter was initially adjourned to 12 February 2021. On 3 February 2021, I was informed by email correspondence that the Defence has been unable to obtain a psychological assessment of the Offender and further time was sought. The adjournment was not opposed by the Crown and the matter was re-listed at 2pm on 5 March 2021 at Parramatta District Court.
On this occasion, the Crown tendered a sentence bundle which was supplemented with a sentence assessment report prepared by Karen Pearce-Bakker – Community Corrections Officer dated 09 February 2021. Also tendered was a psychological report prepared by Leanne Thomas – senior psychologist North-Coast Corrective…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H

Details

AGLC: R v H [2021] NSWDC 107
Case: [2021] NSWDC 107
Decision Date: 19 March 2021

CaseChat Overview and Summary

In the case of R v H, the defendant was convicted of aggravated sexual assault under section 61J(2)(d) of the Crimes Act, in relation to an offence committed against a child. The matter was heard in the Supreme Court of Victoria, where the central issue was the determination of the appropriate sentence for the defendant, taking into account both aggravating and mitigating factors.

The court had to decide the appropriate sentence, given the nature of the offence and the circumstances surrounding it. The victim was significantly younger than the statutory threshold of under 16 years provided for in section 61J(2)(d) of the Crimes Act. The offence occurred in the victim's home, and the defendant held a position of authority over the victim. The court also considered the defendant's lack of prior convictions, their good character, and the unplanned nature of the offending, which were mitigating factors. The objective seriousness of the offence was assessed to be towards the lower end of the scale.

After considering the evidence and arguments presented, the court determined the sentence. The court recognised the severe impact of the offence and the need for deterrence and denunciation, while also acknowledging the mitigating factors. The standard non-parole period was departed from, reflecting the unique circumstances of the case. The court also considered the defendant's background, including their transient living situation, history of sexual abuse, and learning difficulties. The defendant was found to be a medium-high risk of re-offending, which was a critical factor in the sentencing decision. The court's final orders are detailed from paragraph [43] onwards.

Orders

Orders of the court

See [43] onwards

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v H [2021] NSWDC 107
Hearing dates:	30 November 2020, 1 - 3 December 2020, 5 March 2021
Date of orders:	19 March 2021
Decision date:	19 March 2021
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [43] onwards
Catchwords:	CRIMINAL LAW –– Child sex offence – Aggravated sexual assault pursuant to s 61J(2)(d) of the Crimes Act SENTENCE –– Aggravating factors – Victim’s age significantly below threshold of under 16 years provided for in s 61J(2)(d) of the Crimes Act – Victim was under the Offender’s authority – Offending committed in the Victim’s home – Mitigating factors – Offender’s actions not planned – Offender was of prior good character – No prior convictions – Objective seriousness found to fall towards the lower end of objective seriousness – Where the standard non-parole period has been departed from SENTENCE –– Offender resided in seemingly transient accommodation – Offender has been subjected to sexual abuse – Offender experienced learning difficulties from an early age – Where the principles in Bugmy v The Queen are invoked – Offender found to be Medium-High risk of re-offending
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J Crimes (Sentencing Procedure) Act 1999 (NSW), 21A, 3A
Cases Cited:	R v PGM [2008] NSWCCA 172 Bugmy v The Queen [2013] 249 CLR 571 Ellis v R [2020] NSWCCA 303 Muldrock v The Queen (2011) 244 CLR 120
Category:	Sentence
Parties:	Regina (the Crown) H (the Offender)
Representation:	Counsel: Mr J. Stanhope (the Crown) Mr P. Williams (the Offender) Solicitors: Director of Public Prosecutions (the Crown) Legal Aid NSW (the Offender)
File Number(s):	2019/131628
Publication restriction:	Section 578A(2) of the Crimes Act 1900 (NSW) and Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. H is a pseudonym for the Offender.